Judge: H. Jay Ford, III, Case: 19SMCV01587, Date: 2023-03-02 Tentative Ruling

Case Number: 19SMCV01587    Hearing Date: March 2, 2023    Dept: O

  Case Name:  Har-Bro West, Inc. v. Hakim, et al.

SUBJECT:                 MOTION FOR LEAVE TO DESIGNATE EXPERTS FOR DEFENDANTS/Cross---COMPLAINANTS

MOVING PARTY:   Defendant/Cross---Complainant Michael Hakim

RESP. PARTY:         Cross---Defendants Michael A. Vaughan d/b/a Vaughan & Associates and Michael Vaughan Public Insurance Adjusters

TENTATIVE RULING

            Defendant/Cross---Complainant Michael Hakim’s Motion for Leave to Designate Experts for Defendants/Cross---Complainants is DENIED. 

I.  Applicable Law

            “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.”  CCP §2034.710(a).  “A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.”  CCP §2034.710(b).  “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  CCP §2034.710(c).

            “The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

(c) The court has determined that the moving party did all of the following:

            (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

            (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

            (3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”  CCP §2034.720. 

II. Hakim fails to satisfy his burden as the party seeking to submit tardy expert information

            A.  Hakim fails to satisfy the requirements under CCP §2034.710 entitling him to bring this motion

            “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.”  CCP §2034.710(a).  “A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.”  CCP §2034.710(b).  “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  CCP §2034.710(c).

            The discovery cut-off expired on 3-18-22.  Continuance of the trial date to 5-1-23 did not automatically reopen the discovery cut-off.  The Court expressly stated that the discovery deadline had expired and discovery was closed.  Hakim did not move for leave to submit tardy witness information until 2-3-23, nearly a year later. 

Hakim fails to identify any “exceptional circumstances” under CCP §2034.710(b) that would allow him to bring this motion a year after expiration of the discovery deadline.  “Thus, exceptional circumstances were required in order for [plaintiff] to be entitled to make the motion at all.”  See Cottini v. Enloe Medical Center (2014) 226 Cal.App.4^th 401, 420 (court implicitly found lack of “exceptional circumstances” to allow for tardy submission of expert witnesses when it found counsel’s reason for not disclosing expert information earlier—“they knew it anyway”—to be “preposterous”).  Such a showing is especially crucial, because the request is being made long after expiration of the discovery deadline, the trial date has been continued several times and the action has been pending for approximately 3 ½ years. 

Hakim claims any failure to timely designate experts was due to prior counsel’s “mistake, inadvertence, or excusable neglect.”  See Motion, Dec. of D. Wilson, ¶4, 8:4-7.  However, Hakim’s counsel fails to identify the nature of prior counsel’s mistake, inadvertence or excusable neglect was, nor does he provide a declaration from prior counsel.  Id.  Hakim fails to establish “exceptional circumstances” to justify his extremely untimely motion for leave to submit tardy expert information.

In addition, the Court is required under CCP §2034.720(d) to condition any order granting leave to submit tardy expert information “on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410).”  CCP §2034.720(d).  However, Hakim did not file any accompanying motion to reopen discovery under CCP §2024.050.  Hakim cannot offer his experts for deposition while discovery remains closed, and the Court cannot permit Hakim to submit tardy expert information if the other parties cannot depose those proposed experts.  See Cottini, supra, 226 Cal.App.4^th at 420 (in recognition of expiration of discovery deadline, plaintiff filed motion to reopen discovery per CCP §2024.050 along with motion to submit tardy expert information under CCP §2034.720). 

Finally, Hakim fails to submit the meet and confer declaration required by CCP §2034.710(c).  No meet and confer efforts are detailed in counsel’s declaration.  See Motion, Dec. of D. Wilson, ¶¶1-4.  Counsel for Vaughan also testifies that Hakim’s counsel never contacted him to discuss this motion prior to its filing.  See Defendant Vaughan’s Objection/Opposition, Dec. of T. Wilson, ¶¶1-4. 

            B.  Hakim fails to satisfy the requirements under CCP §2034.720 entitling him to relief

            “The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

(c) The court has determined that the moving party did all of the following:

            (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

            (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

            (3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

            Defendant Hakim fails to establish that the other parties have not relied on the absence of a list of expert witnesses.  Hakim claims his witnesses will only testify as to matter for which other parties have already designated experts.  However, the other parties have relied on the absence of any list of witnesses in other ways.  They have not had an opportunity to depose any experts and they would have no opportunity to do so given expiration of the discovery deadline.  On this basis, the Court cannot find that factors (a) and (b) are satisfied.  The other parties relied on the absence of any witness list from Hakim and they will be prejudiced if leave is granted.

            Hakim does not identify the mistake, inadvertence, surprise or excusable neglect of prior counsel that prevented him from timely submitting expert information.  Hakim also fails to identify when this mistake, inadvertence, surprise or excusable neglect occurred. Without this information, the Court cannot determine whether Hakim acted “promptly” upon learning of the mistake, inadvertence, surprise, or excusable neglect. 

            Based on the Court’s records, prior counsel Fenster was relieved as counsel on 7-28-22.  This motion was not brought until 2-3-23, approximately 7 months after Fenster ceased representing Hakim. 

            The Court also previously excluded Hakim’s expert Cleoni on 8-16-22, because Hakim failed to disclose Cleoni as an expert and the expert discovery cutoff had already expired.  See Minute Order dated 8-18-22.  In the order, the Court stated that the motion in limine was granted without prejudice to the appropriate relief being sought.  Hakim only moved to submit tardy witness information on 2-3-23, approximately five months later.  Hakim has also never moved to reopen discovery. 

            Finally, Hakim was required to “promptly” serve all parties with “a copy of the proposed expert witness information described in Section 2034.260.”  CCP §2034.720(c)(3).  Hakim does not confirm that he provided the name and address of his experts required under CCP §2034.260(b)(1) to all parties.  Hakim also fails to establish that he provided all parties with declarations by his proposed expert under penalty of perjury that contains: (1) a brief narrative statement of the qualifications of each expert; (2) a brief narrative statement of the general substance of the testimony that the expert is expected to give; (3) a representation that the expert has agreed to testify at the trial; (4) a representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and tis basis, that the expert is expected to give at trial; and (5) a statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.

            Hakim fails to satisfy any of the factors set forth under CCP §2034.720(c), much less “all” of them.  Hakim’s Motion for Leave to Designate Experts is DENIED.